Ontario Labour Relations Board
[1983] OLRB Rep. April 522
0988-82-U Ontario Nurses' Association, Jean Berger and Carol Lindsay, Complainants, v. Grey Owen Sound Joint Homes for the Aged (GreyOwen Lodge), Respondent
BEFORE: G. Gail Brent, Vice-Chairman and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Richard Nixon, Jean Berger, Carol Lindsay, Ella Johnson and Suzanne Holland for the complainants; R. C. Filion, H. L. Van Wyck, Q. C., R. G. Butcher and C. Peterson for the respondent.
DECISION OF THE BOARD; April 19, 1983
The complainants have complained that the grievors have been dealt with by the respondent contrary to sections 64 and 66 of the Labour Relations Act and that section 13 of the Hospital Labour Disputes Arbitration Act has been breached. In an earlier decision dated January 20, 1983 the Board determined that it would not hear the section 15 complaint which had been added to the original complaint following the date set for the commencement of the hearing.
In paragraph 1 of that decision a chronology of events was set out and is again set out here:
(a) On January 20, 1981 the complainant association was certified as bargaining agent for registered nurses employed by the respondent.
(b) Between January 20, 1981 and January 4, 1982 there were negotiations between the parties; however, these negotiations did not result in a collective agreement.
(c) On January 4, 1982, the complainant association served notice on the respondent to submit all outstanding issues to arbitration pursuant to the Hospital Labour Disputes Arbitration Act, R.S.O. 1980 c. 205.
(d) On August 18, 1982 the complainant association filed its original complaint against the respondent. This complaint did not allege any violation of section 15 of the Act.
(e) On September 27, 1982 a hearing was convened to hear and determine the complaint. The complainant association amended its original complaint to include an allegation of bad faith bargaining. There was a request for particulars to be filed and submissions were requested on the matter of who would proceed first. The hearing adjourned.
(f) On September 29, 1982 representatives of the complainant association and the respondent met and resolved all outstanding issues. A memorandum of agreement was signed that day.
(g) On October 6, 1982 the collective agreement was ratified and it was signed on November 3, 1982.
(h) On November 18, 1982 the Board convened a hearing to deal with the complaint.
- The respondent operates two facilities, Lee Manor in Owen Sound and Grey Owen Lodge in Markdale. Prior to July, 1982 the former facility housed approximately one hundred and fifty residents including thirty-nine extended care residents, and the latter housed approximately seventy residents including fourteen extended care residents.
Pursuant to the regulations promulgated under the Homes for the Aged and Rest Homes Act R.S.O. 1980, c. 203, extended care residents must be given one and one-half hours of nursing care per day under a Registered Nurse (hereinafter referred to as R.N.). Effective November, 1981 the Ministry of Community and Social Services (hereinafter referred to as COMSOC) had frozen admissions to the Grey Owen Lodge. The R.N. complement at the two facilities prior to July, 1982 was as follows:
Lee Manor — 2 full-time 5 part-time
Grey Owen Lodge — 2 full-time 3 part-time
The Board was given a bundle of documents (Exhibit #2) regarding negotiations with COMSOC concerning the future of Grey Owen Lodge. It would appear from the letters that it was recognized in 1981 that substantial renovations would be needed to make Grey Owen Lodge conform to fire safety regulations. It is also clear that there was a great deal of concern regarding the future of Grey Owen Lodge following COMSOC's announcement in early 1981 that a new Home for the Aged would be built in Durham. The documents outline the dealings between COMSOC and the respondent and indicate that it was COMSOC's position that, upon the opening of the Durham Home, all extended care residents would be transferred from Grey Owen Lodge to Durham, that the number of residents at Grey Owen Lodge would be adjusted downwards and that Grey Owen Lodge would be a residential facility only. In April, 1982 COMSOC approved financing for a plan to build a 100-bed Home for the Aged in Durham, to renovate Grey Owen Lodge to accommodate 41 to 46 residents, and to transfer the extended care residents from Grey Owen Lodge to Durham.
It was necessary to reduce the number of residents at Grey Owen Lodge in order to comply with COMSOC's requirements and to effect the necessary renovations with minimum disruption. Mr. Butcher, the respondent's director, testified that it was decided to transfer the extended care residents to other facilities because it seemed the most humane way of proceeding. This was because it would be necessary to move those residents staying in Grey Owen Lodge three times during the course of renovations, and it was decided that the residential people could accommodate the number of required moves better than the extended care people. The elimination of the extended care residents meant that the number of nursing care hours per day was substantially reduced and that it was only necessary to have one R.N. on duty for one shift per day. Because of COMSOC's budgetary control over the respondent, it could not exceed the staffing requirements.
The respondent elected to cover the day shift with one R.N. and to assign those duties to its Director of Nursing at Grey Owen Lodge from Monday to Friday. It also decided to cover the weekend day shifts with part-time R.N.s. The Director of Nursing had previously been the only R.N. on duty on the day shift on Monday, Wednesday and Friday and on Tuesday, and Thursday another R.N. had been assigned to the day shift to free the Director of her nursing responsibilities. The respondent therefore determined that it would reduce the number of R.N. positions from two full-time and three part-time to two part-time.
In July, 1982 the respondent sent letters (Exhibits #3 and #4) to the two full-time R.N.s and the most junior part-time R.N. notifying them of the changes and the fact that their services would not be required after a designated date in August.
There is no doubt from the evidence that the respondent knew that one of the complainants, Ms. Berger was active in the complainant union. The union had been certified for over a year and she was part of the union's negotiating committee. By its own admission, the union was advised in April, 1982 that the role of Grey Owen Lodge was being changed and that that would lead to R.N. staff being changed and that that would lead to R.N. staff reductions. To summarize, it was the evidence of Mr. Butcher, the respondent's Director, that in July he asked Mr. Van Wyck, the respondent's solicitor, how to reduce staff and was advised to let the full-time R.N.s go along with the most junior part-time R.N.
Mr. Butcher testified that staff reductions were also required in all of the other areas of the Grey Owen Lodge operation. The other employees are not represented by a union. There is a staff association. It would appear that there has never really been a layoff at Grey Owen Lodge before and Mr. Butcher asked the staff association to develop a proposal regarding layoff procedures as early as February, 1982. That proposal (Exhibit #7) was not accepted by the respondent's management board and the administration was instructed to deal with the layoffs as it saw fit. Mr. Butcher said that he decided that the staff reduction in the non-R.N. group would be on the basis of departmental seniority. He said that the proposed amendments to the personnel handbook (Exhibit #13) arose out of the staff association's proposal and were not implemented; however, he decided to calculate seniority on the basis set out in paragraph I of the seniority section of Exhibit #13 (hours worked back to date of hire) taking into account the provision that seniority would be carried over if an employee transferred from full-time to part-time or vice versa. He also said that he did not implement the layoff provision proposed in Exhibit #13 because he determined that departmental seniority was more appropriate than Home seniority.
The respondent's personnel handbook (Exhibit #12), which was in effect at all material times, does not have any provision which deals with layoffs. The handbook recognizes that there are different categories of employees but does not appear to treat them differently for the purpose of seniority. Mr. Butcher said that when the general (other than R.N.) staff were laid off the respondent followed the same practice as it did with the R.N. staff, that is, the part-time and full-time employees were treated separately and layoffs occurred according to departmental seniority within those particular categories.
The evidence also shows that in March, 1982 the County Council passed a resolution providing that all those who were laid off as a result of the staff reductions at Grey Owen Lodge should be given priority when the new Durham Home is staffed. Further, there is evidence that one R.N. who was laid off had been recalled to work to fill in for those who were required to be in Toronto at the hearing.
It was the undisputed evidence that Mr. Van Wyck alone made the decision to lay off the R.N.s according to seniority and to treat the full-time and part-time R.N.s separately. Mr. Van Wyck was at all material times the respondent's solicitor and was a participant in the ongoing negotiations between the parties. In April, 1982 he was informed that layoffs were going to be necessary, and he then attempted to telephone Ms. Johnston, one of the complainant association's Employment Relations Officers and its representative at the negotiations, to inform her of the layoffs. He was unable to reach her so he wrote her a letter (Exhibit #17) dated April 22, 1982 informing her that layoffs would be necessary and that one R.N. would have been laid off already except for the fact that she applied for and obtained a vacant position at Lee Manor.
In July, 1982 Mr. Van Wyck was informed that there would be more layoffs, and his advice was sought concerning the procedure to be followed in laying off the R.N.s. By that time the parties had progressed in their negotiations to the extent that they had provisionally agreed on some items (Exhibit #16). One of the three items was a provision which Mr. Van Wyck interpreted as requiring the respondent to give thirty days' notice to the complainant association if there were to be layoffs, and another was one which Mr. Van Wyck interpreted as requiring the respondent to maintain separate seniority lists for full-time and part-time employees and to treat those groups separately for layoff purposes. Accordingly, he advised Mr. Butcher to layoff the full-time R.N.s and the most junior part-time R.N. Mr. Van Wyck then spoke to Ms. Johnson by telephone on July 21, 1982 and told her (a) that they would be losing the full-time R.N.s along with one part-time R.N.; (b) that the Director of Nursing's schedule was being changed; and (c) that there was a real possibility that the parties could resolve their monetary differences and reach a collective agreement without going to arbitration. They spoke for over one hour and Mr. Van Wyck was told by Ms. Johnson that her staff union was on strike against the complainant association, that she did not know whether or not she should become involved, and that she would let him know the next day whether or not she could become involved. On July 22, 1982 Ms. Johnson told Mr. Van Wyck that she could not deal with the matter and that he should call the complainant association's Toronto office. He did that on July 23, 1982 and conveyed the information to Ms. Lowry, the complainant association's Director of Human Resources.
It was Mr. Van Wyck's evidence that, at the time he advised Mr. Butcher to layoff the two full-time R.N.s and the most junior part-time R.N., he did not know the identity of the R.N.s to be affected. He was advised, by Mr. Butcher, on July 21, 1982, of the names of those to be laid off using his criteria, and was also advised that the two remaining part-time R.N.s were not, at that time, members of the union. Mr. Van Wyck needed to know the identity of those affected to prepare the notice letters and to ensure that the notice provisions of the Employment Standards Act, R.S.O. 1980, c. 137, as amended, were complied with. Mr. Van Wyck said that he "couldn't have cared less" whether the two most senior part-time R.N.s were members of the union or not because to him the only issue was who were the most senior of the part-time R.N.s. Mr. Van Wyck said that Mr. Butcher expressed concern because the only people being retained were not union members then (they have since become union members), but that he was not concerned because union membership was not a criterion in the making of the decision.
There is no evidence to counter the respondent's evidence concerning the means by which the decision was made. The two full-time R.N.s both testified that they believed that the reason for their layoff was because of their union affiliation or activity.
Only Ms. Berger testified concerning what she perceived to have been expressions of the respondent's anti-union animus toward her. She related eight incidents or matters which occurred in the year and a half or so since the union was certified. Without going into detail, there were two or three incidents which could possibly be construed as leading to disciplinary action. The strongest possible construction that can be placed on any disciplinary action would be to construe the letter (Exhibit #30) dated May 21, 1981 as being a written warning, and, with all due respect to Ms. Berger, it is quite possible to conclude that the letter is not disciplinary at all. In cases where Ms. Berger believed the respondent's response to be motivated by anti-union animus she admitted on cross-examination that there was a factual basis for the respondent's complaint of potential hazards such as glass on the floor, water on the floor, pills found at a resident's bedside, etc. and in the latter instance she admitted having received a previous reprimand (Exhibit #38) from the Director of Nursing in March, 1980 regarding the administration of medication. March, 1980 was well before Ms. Berger's involvement with the union. There is no evidence that Ms. Berger was ever threatened with dismissal or that the respondent ever mentioned her union involvement to her. There were no charges made against the respondent at the time of certification.
Ms. Lindsay testified that she assumed from conversations with the Director of Nursing that those with most seniority would be retained to fill the two part-time R.N. jobs. She said that she was never promised that she would be retained and that she had the distinct impression that the decision about who to retain was not made by the Director of Nursing, but rather by higher management. Ms. Lindsay testified that she had a good working relationship with the Director of Nursing and had never been aware of any antagonism or discrimination on the Director's part. She described the Director as a fair, conscientious, impartial supervisor who just did her job and who never expressed any opinion about union membership.
In connection with the section 64 and section 66 allegations, the Board accepts that the respondent must satisfy the burden of demonstrating, on balance of probabilities, that it has disclosed all of the reasons for the termination of employment or indefinite layoffs, that there are no other reasons, and that anti-union animus played absolutely no part in the decision. In this case, there is uncontradicted evidence that the person who made the decision about whom to layoff was Mr. Van Wyck, and that the basis for his decision was his interpretation of the matters provisionally agreed to in negotiations. He instructed the respondent to lay off by seniority and to treat the part-time and full-time R.N.s separately. There is absolutely no evidence to contradict his statement that he did not realize who would be affected until he was later informed by Mr. Butcher that the two most senior part-time R.N.s were not members of the union.
While Ms. Berger no doubt honestly believes that her union activities were a cause for displeasure on the respondent's part and that they were a factor in her layoff, there is no evidence on which we can reach a similar conclusion. Even if the Director of Nursing and the Home's Administrator were displaying anti-union animus, there is no causal link between such anti-union animus and the decision to lay off, nor is there any evidence that the respondent's management played a role in determining who should be let go. Under those circumstances, it would be unreasonable, if not impossible, for us to conclude that anti-union animus was a factor in the decision to let either Ms. Berger or Ms. Lindsay go.
There is also an allegation that the respondent breached section 13 of the Hospital Labour Disputes Arbitration Act, R.S.O. 1980, c. 205. That is the freeze provision of the legislation, and is reproduced below:
Notwithstanding subsection 79(1) of the Labour Relations Act, where notice has been given under section 14 or 53 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of hospital employees to which this Act applies to or by the employer of such employees and no collective agreement is in operation, no such employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, and no such trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, until the right of the trade union to represent the employees has been terminated.
It can be seen that to all intents and purposes it freezes the same sort of things as section 79 of the Labour Relations Act.
We do not consider, as argued by the respondent, that the provisional agreement reached in negotiations regarding some items can be held to be consent on the part of the complainant association. It was fully understood by both parties that the items agreed to were subject to a collective agreement being reached. We believe that to regard such agreements as being consent for the purpose of the freeze would be to distort the significance of the agreement and could possibly add a factor to negotiations which might hinder their orderly progress.
The Board, in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept, 859, articulated a "business as before" rule during the freeze period. In essence, the Board decided that the legislative intent of the freeze was "to maintain the prior pattern of the employment relationship in its entirety." (See paragraph 19 of the decision.) One problem in a first agreement situation is that the parties are in transition from a situation of unrestricted management's rights to one in which collective bargaining will result in some shift in the balance of power as between employer and employees. It is often very difficult in such situations to ascertain what the pattern of the employment relationship was.
In this case we were presented with a personnel handbook (Exhibit #12) which we accept as evidence of such a pattern. The problem is that the handbook does not speak to layoffs. That's a difficulty which the respondent itself apprehended when it asked the staff association to present a proposal regarding layoffs. Moreover, given the nature of the respondent's business operation, layoffs were not common and there was no real established pattern for dealing with them which we could ascertain.
The respondent here was faced with the need to reduce its R.N. staff because of the situation surrounding the removal of extended care residents and the reduction in the number of residents at Grey Owen Lodge. That situation was not one of the respondent's making, but rather, was one which arose out of decisions made by COMSOC. The complainant association does not question that there was a need for a layoff nor does it question the right of the respondent to respond to the situation. It questions only the basis on which the layoffs were made.
In several cases the Board has expressly recognized the right of management to lay off during the freeze. See for example Burlington Carpet Mills Canada Ltd., [1980] OLRB Rep. Oct. 1361 at p. 1364, paragraph 19; The Winchester Press Limited, [1982] OLRB Rep. Feb. 284 at p. 296, paragraph 35; and Rest Haven Nursing Home, [1979] OLRB Rep. June 554 at p. 557, paragraph 18. We wish to reaffirm that right, subject to whatever restrictions may be consistent with and implicit in the "business as before" doctrine.
What of a situation, though, where changing external circumstances have put the employer in a position where for the first time it must lay off employees? In The Winchester Press, supra case, the Board was faced with an analogous situation and determined that the employer could exercise its management right to lay off in order to respond to a changed situation. There the people to be laid off were chosen on the basis of their capabilities, rather than on the basis of their seniority. Clearly, the Board must have recognized that, in the absence of any collective agreement or established pattern, the employer's discretion to establish a means of implementing a layoff remained during the freeze to enable it to meet the legitimate business needs that could arise.
We agree that this case appears, at first blush, to bear a resemblance to the situation in Rest Haven Nursing Home, supra, in that it could be said that the respondent has eliminated an entire classification (full-time R.N.s). In that case, however, the elimination of the classification was not done in response to any external factor or changed function. The crucial element there, insofar as the freeze is concerned, was that the employer had a well established pattern of employing people in the eliminated classification to perform the same functions which still had to be performed and could establish no reason why it should deviate from that practice. Here there was a practice of employing full-time R.N.s on three shifts; however, there is also a valid and compelling external reason to deviate from that practice and to reduce staff.
In our view, there is nothing to suggest that there was any established pattern of how to administer layoffs such as would give rise to any privilege on the part of the employees in the bargaining unit. Therefore, unless the respondent is to be prohibited from laying off employees, which is not the complainant association's position, then it must be allowed to exercise its right to lay off in some way. In this case the respondent chose to lay off on the basis of seniority and to treat full-time and part-time employees as being separate. It followed the same procedure in laying off the members of its general staff. It did not act for any improper purpose in making its decision. It surely cannot be the intent of the legislation and the cases to tie the hands of the employer by prohibiting the employer facing the problem for the first time to determine a way in which to respond to the need to reduce staff. Therefore, having determined that there was a valid reason to reduce staff and no established way of accomplishing such a reduction, the Board must, as in The Winchester Press case, supra allow the employer the leeway to respond to the new situation in a manner which is consistent with its obligations under the Act. In this case, given all of the circumstances, we do not consider that there is any violation of the statutory freeze.
The progress of this case has not been helped by the lack of particularity regarding the alleged violations of section 64 and section 66. Upon reflection, there was no waste of the third hearing day as a result of such a lack and there is no reason to believe that the case could have been completed in three hearing days rather than four. Under the circumstances, costs will not be awarded on account of the delay.
For all of the reasons set out above the complaint is dismissed. In dismissing the complaint, the Board believes that, in the interests of avoiding any possible future misunderstanding, it should record its understanding that the resolution passed by the County Council applies to everyone who was indefinitely laid off as a result of the changes at Grey Owen Lodge, including of course, Ms. Berger and Ms. Lindsay.